POON FOW HING v. POON KWAI PING

DCCJ 2417/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2417 OF 2012

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DECISION

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1. This is an unusual appeal from the decision of a master.

2. A breakdown of trust between a solicitor and a client resulted in an application by the solicitors for the Defendant by Original Action (“applicant”) for an order under Order 67, Rule 6(1) of the Rules of the District Court, Cap.336H declaring that they have ceased to be solicitors acting for the Defendant by Original Action (“Ms. Poon”) in this action. 

3. In his supporting affirmation, the handling solicitor (“Mr. Chan”) sets out the events leading to what he perceives as a serious breakdown in the confidence between him/his firm and Ms. Poon.  Exhibited to the affirmation is a serious of emails exchanged between the parties concerned. 

4. Upon hearing Mr. Chan and Ms. Poon, Master S.P. Yip granted the order sought by the applicant on 4^th November 2013 with no order as to costs.  Ms. Poon appealed against the learned Master’s order and sought an order for the applicant to continue to act for her and take further steps on her behalf in this action.

5. In support of her appeal, Ms. Poon filed in court an affirmation explaining what had driven her to write the 15 October email and why she had contacted counsel direct and exhibiting several emails that were not adduced in evidence before the learned Master.  To that Mr. Chan filed an affirmation in opposition exhibiting yet a few more copy emails.  

6. An appeal from any judgment, decision or order of a master is conducted by way of rehearing as though it came before the court for the first time.  See para. 58/1/2, Hong Kong Civil Procedure 2013.  Order 58, rule 4 of the Rules of the District Court, Cap.336H, however, provides that no further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds. 

7. The phrase “special grounds” here requires the conditions laid down in Ladd v. Marshall [1954] 1 W.L.R. 1489 to be satisfied, namely, (a) that the evidence could not have been obtained with reasonable diligence for use at the hearing below; (b) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (c) the evidence must be such as is presumably to be believed. See para. 58/1/3, Hong Kong Civil Procedure 2013.

8. I am not satisfied that special grounds exist here.  The additional information and emails were in the possession of both parties at the time the application was heard by the learned Master and neither party saw fit to produce the same.  In any event, I do not think they would have an important influence on the result of the case and therefore make no reference to the same. 

Events leading to the application

9. The Plaintiff by Original Action, who is an elder brother of Ms. Poon, commenced these proceedings in July 2012 to claim against Ms. Poon for vacant possession of a residential property and damages for trespass. 

10. The applicant was instructed to defend the claim and a defence and counterclaim was filed on Ms. Poon’s behalf in October 2012.  Since the last round of exchange of pleadings in March 2013, however, no further steps have been taken by any party.

11. Since then, Mr. Chan, in consultation with counsel, had been working on an interlocutory application Ms. Poon was minded to take out, the Plaintiff by Original Action having refused consent.

12. The emails exhibited to the affirmation in support of the application are limited to those exchanged in the month of October 2103 and therefore present only a limited picture. 

13. The first one in the series is an email from counsel dated 5 October 2013 addressed to both Ms. Poon and Mr. Chan demanding that no further data be sent direct to him.  I am given to understand that Ms. Poon had sent some case materials relating to her intended interlocutory application to both counsel and Mr. Chan the day before.  Counsel’s email was obviously directed at Ms. Poon. 

14. Mr. Chan wrote to Ms. Poon two days later asking the latter not to “send or copy any further data to (counsel), as I advised you before…All instructions have to be thru’ your instructing solicitor.  You are Not Counsel’s client.” 

15. Then came a strongly worded email from Mr. Chan to Ms. Poon on 11 October 2013 saying counsel was annoyed by the direct approach.  Mr. Chan wrote: “I am embarrassed and disappointed by your lack of respect.  You have not taken my repeated advice indeed.  If your do not trust my advice, would you like to change solicitors or act in person...I simply cannot continue serving a client who doesn’t respect and/or trust me.” 

16. On the face of it, Ms. Poon’s direct communication with counsel against Mr. Chan’s advice appeared to have prompted Mr. Chan’s strong feeling and suggestion that she should change solicitors.  As will be seen from below, this could not have been the only reason.

17. In the same email, Mr. Chan went on to say he would not take the necessary step for bringing forward the intended interlocutory application pending Ms. Poon’s decision as to whether she would change solicitors.  On 14 October 2013, Mr. Chan sent another email to ask about Ms. Poon’s decision on change of solicitors.

18. Clearly in dismay, Ms. Poon wrote back on 15 October 2013 (“15 October email”) to say “as I said before I cannot afford the legal fee for changing solicitors…” (Emphasis added)  This indicates that Mr. Chan had previously suggested that Ms. Poon should change solicitors. 

19. It is unclear what had driven Mr. Chan to make such suggestion on a previous occasion. Suffice it to say this is not an easy suggestion for a solicitor to make to his client.

20. To address the issue of trust, Ms. Poon continued: “Pls don’t play this game again, we are not kids anymore and I am sick of this game.  If I don’t trust you, I would not have sent you the…cheque.  I would appreciate greatly if you would spend your time constructively by working on my (intended interlocutory application) today”.  The undertone of this remark clearly bespeaks dissatisfaction with the progress of her intended interlocutory application and causes one to wonder if trust was truly reposed in the solicitor.

21. As to counsel’s complaint about her direct approach, Ms. Poon somehow believed it was prompted by Mr. Chan as she wrote: “I am sure you requested (counsel) to ask me to stop sending him any further data”.  (Emphasis added)  Ms. Poon went on to ask if Mr. Chan had stopped her from sending counsel emails because he did not want counsel to see the same.

22. It is instructive to note that in the same email, Ms. Poon questioned Mr. Chan’s earlier estimate as to the time he would take in preparing her intended interlocutory application, which estimate she described as highly unreasonable.  She went on to complain that Mr. Chan did not work on the application for one whole week, thereby violating Rule 2 of the Solicitors’ Practice Rules.  She also accused Mr. Chan of having deliberately delayed the filing of the intended interlocutory application and questioned whether this was because (a) he wanted to please the solicitors for the other side; (b) he was afraid of the solicitors and did not want to offend them; (c) he wanted to get more legal fees; or (d) he wanted to upset her.

23. As one can expect, Mr. Chan wrote back the next morning to refute the accusations.  In view of the doubt cast on his integrity and professional ethics, he repeated his suggestion that Ms. Poon should change solicitors or else he would formally terminate the retainer on 21 October and apply to the court for an order under O.67, r.6 of the Rules of the District Court.

24. The next day Ms. Poon wrote back to indicate willingness to change solicitors but she would need time over the weekend to seek advice on a suitable replacement solicitor. 

25. Notwithstanding this, a further exchange of emails followed in the next few days.  Suffice it to say the communication was developing into an argumentative discourse, with Ms. Poon concluding by a remark that if there was a breakdown in confidence, Mr. Chan would be held responsible.

26. By his email dated 21 October 2013, Mr. Chan formally terminated his retainer with Ms. Poon.  The application was filed the next day.

27. In the affirmation in support of the application, Mr. Chan described Ms. Poon as someone having a strong will, sometimes challenging him bluntly on the way he dealt with the procedure and evidence.  He referred to his embarrassment by Ms. Poon’s direct contact with counsel or counsel’s secretary and his disappointment with her lack of respect and trust of his advice. 

28. In light of Ms. Poon’s accusations against him in the 15 October email, Mr. Chan considered that there was a serious breakdown in the confidence between him and Ms. Poon and that under Rule 5.22 of the Solicitors’ Guide to Professional Conduct^[1], his retainer could be terminated. 

29. Before me, Ms. Poon insisted that there was no breakdown of confidence between her and Mr. Chan.  She believed Mr. Chan had misunderstood her and that the application was prompted by her direct communication with counsel against his advice.  Her earlier challenge to Mr. Chan’s fees might also have a part to play, so she believed. 

30. On the other hand, she admitted that in insisting on having Mr. Chan continue to act for her in this action, the extra fees that she would have to pay to a new lawyer for reading in is an important consideration.  She somehow believes once her intended interlocutory application is taken out and additional evidence from her revealed, it is highly likely that a settlement would be forthcoming so that Mr. Chan’s retainer could be discharged fairly soon.  She submitted that it would be a punishment to her to allow the applicant to cease to act for her.

31. In reply, Mr. Chan said Ms. Poon’s accusations against him had made him lose the confidence to continue to act for her and he would have to act under the constant worry that Ms. Poon might complain to the Law Society or otherwise sue him.  He submitted that the financial position of Ms. Poon should not be taken into account in considering the application.

Relevant legal principles

32. The relevant legal principles are nicely encapsulated in the commentary at para. 67/6/4, Hong Kong Civil Procedure 2013:

“ The general rule is that a retainer to conduct or defend an action continues till the client discharges the solicitor, or the solicitor discharges himself, or till death or incapacity of either party, or a change in the solicitor’s firm, or till the final conclusion of the cause or matter…But the retainer is subject to implied terms enabling the solicitor to withdraw for good cause and upon reasonable notice…

“ The court has a discretion whether or not to make an order declaring that a solicitor has ceased to act for a party, but unless there are special circumstances which render it expedient to retain the solicitor on the record, the order will generally be made as a matter of course upon proof that the solicitor has in fact ceased to act for the party and that no steps have been taken to take the solicitor’s name off the record…O. 67, r. 6(1) does not allow the court to consider whether the relationship of solicitor and client should continue or be terminated.”

33. In determining whether an order under Order 67, rule 6(1) in the present case, I need only find whether a good cause has been shown.  I accept that a serious breakdown in the confidence between a solicitor and a client is a good cause.

34. In the process, Ineed not make a finding as to what had driven Mr. Chan and Ms. Poon to write the strongly worded emails in October 2013 or whether the allegations contained therein are made out.  It suffices if the emails point to a serious breakdown in the confidence between the two.

Discussion

35. On her own admission, Ms. Poon had not stopped communicating with counsel direct even after counsel’s request for her not to do so.  While she is clearly unable to understand why she should not make direct contact with counsel, she is equally unable to pay heed to her solicitor’s repeated advice against such contact. 

36. Ms. Poon seems to think her direct communication with counsel is the main reason for the application.  One can see from the above that this alone could not have prompted the application.

37. No doubt Ms. Poon has been unhappy with Mr. Chan.  She finds the fees charged by him unreasonable. She dislikes the idea of not being able to contact counsel direct even when she was not receiving prompt response from Mr. Chan.  She believes Mr. Chan has delayed her intended interlocutory application despite her having paid the costs on account for this purpose and she is not convinced by the latter’s explanation as to why it has taken so long to prepare the intended interlocutory application.

38. Despite all these, Ms. Poon insists on having Mr. Chan stay on.  Clearly, the extra costs of engaging a new lawyer weigh heavily on her mind, hence her refusal to acknowledge the serious breakdown of confidence between her and Mr. Chan.

39. From the last few emails exchanged between Ms. Poon and Mr. Chan, one can only conclude that the rapport between them had deteriorated to such an extent that their communications shortly before the formal termination of the retainer were hardly commensurate with those one would expect to see between a lay client and a trusted lawyer and were other than conducive to a proper conduct of Ms. Poon’s case.

40. I say this without attributing fault to either side because, for the present purpose, I need only find if there is a serious breakdown of confidence between them so that a good cause is shown for an order to be made under Order 67, rule 6(1). 

Conclusion

41. I am satisfied that a good cause is shown here.

42. I find no special circumstances which would render it expedient to retain the applicant as solicitors on record.  That Ms. Poon would have to pay extra fees to a new lawyer for reading in does not amount to special circumstances.  Nor does Ms. Poon’s optimism that her intended interlocutory application once taken out would procure an early settlement make it expedient to retain Mr. Chan any longer. 

43. I am satisfied that an order should be made under Order 67, rule 6(1).  Ms. Poon’s appeal is dismissed accordingly.

Costs

44. Mr. Chan asked for costs of the hearing of the appeal in case of dismissal of appeal.  I see no reason why costs should not follow the event.  By way of gross sum assessment, I award to the applicant a sum of HK$4,000. 

45. I make an order nisi that Ms. Poon do pay to the applicant the costs of the hearing of the appeal, assessed at HK$4,000 and payable forthwith.  The order nisi shall become absolute unless an application is made for variation of the same within 14 days from the handing down of this decision.